Nik Raina: Victim of the Perverse Syariah Chief Prosecutor

by Din Merican

This morning (August 7), I went to the Syariah Court with my wife Dr Kamsiah to give support to Nik Raina Nik Aziz, the Borders Bookstore Manager, who had to suffer humiliation and trauma by being forced to appear again in the Syariah Court.

This had to happen after the JAWI Syariah Chief Prosecutor asked the Syariah Court to expedite the case against Nik Raina in an apparent attempt to circumvent the Judicial Review action commenced by Borders in the civil High Court.

On June 19 2012, Nik Raina was charged in the Syariah court for distributing Irshad Manji’s  book titled “Allah, Liberty and Love” which JAWI deemed to be against the precepts of Syariah laws. What exactly is so offensive about that book is unclear. What is clear is that Nik Raina faces a RM3,000 fine or two years’ jail or both under Section 13(1) of the Syariah Criminal Offences Act (Federal Territories) 1997, if convicted. That is how severe things can be if you work as a book store manager in Malaysia. That is the message that JAWI is sending out to the whole world.

By the time I arrived at the Syariah Court, the court room was swarmed with Borders’ employees and Nik Raina’s supporters.

It is heartening to note that Malaysians of different creed and colour were all there to her support her and ensure that there will be justice for Nik Raina who is facing the full brunt of the powerful JAWI Syariah Chief Prosecutor. It is encouraging that Malaysians come together united against what they perceive to be an unjust persecution of a poor innocent Malay Muslim employee of a bookstore who happened to be in the right place at the wrong time.

But, I was amused to note that there was none of the haughtiness displayed earlier by the Syariah Chief Prosecutor, Tuan Ibrahim Deris. This morning, Ibrahim Deris seemed meek and amiable. Perhaps, the big crowd cowed him. Perhaps, he realised that his letter dated June 27, 2012 to the Syariah Court about wanting to have the case expedited in order to afford him an opportunity to address the media and bloggers had gone viral.

Perhaps Ibrahim Deris had suddenly realised that his opponent, the counsel acting for Nik Raina, is my young friend and formidable lawyer Rosli Dahlan who would brook no nonsense from public officials who abuse their power. Whatever it is, I noted that Ibrahim Deris was obviously trying to play the public relations card. I was proven right when the court proceedings started.

I found it strange that despite this being a case initiated by the Syariah Chief Prosecutor, as evident from the title of the case – Pendakwa Syarie v Nik Raina Nik Aziz, Ibrahim Deris avoided opening today’s proceeding. He waited for Rosli Dahlan to make the introductions. Ibrahim Deris then told the Syariah Judge that although he asked for the case to be expedited, it is his prerogative to seek a postponement of the criminal proceedings and asked the Judge to do so.

What Crap?

Hey! What crap is that? It is sheer arrogance on his part to make it appear that he is seeking an adjournment in the interest of justice. I bet that’s what the mainstream media especially the UMNO aligned newspapers will report on the following day.

I was irritated. I was annoyed by this man’s pretences and lack of remorse. After preferring the charge against Nik Raina; after asking to expedite the criminal case; this man now has the cheek to make it appear that he is consenting to a stay of the proceedings in the syariah court.

I was delighted when Rosli Dahlan stood up to tell the Syariah Judge that in actual fact, yesterday, the Court of Appeal had issued an Order against the JAWI Syariah Chief Prosecutor from proceeding any further against Borders and its employees including Nik Raina.

Rosli read out the terms of the Court of Appeal Order which demonstrated that the only reason Ibrahim Deris had to make all these concessions is because he had been restrained to do so and not because he believes in the interest of justice as he tried to portray it.

Rosli then narrated that the actual mention date as fixed by the Syariah Court is  September 19, 2012 and the only reason parties are in court today is because Ibrahim Deris had asked for the Syariah criminal case to be expedited. Implicit was the fact that Ibrahim Deris had tried to circumvent the Judicial Review filed by Borders in the civil High Courts.

Syariah Judge Abdul Walid Abu Hassan asked Rosli to explain the Judicial Review before the civil High Court, to which Rosli said that it had to do with JAWI’s premature action of enforcing s.13 of the Syariah Criminal Offences Act on publications that are contrary to hukum syarak at a time when the Irshad Manji’s book was not yet banned by the Home Ministry under s. 7 of the Printing, Presses and Publications Act.

A Conflict of Jurisdiction

Rosli explained that by jumping the gun, JAWI had caused a conflict of jurisdiction which can only be decided by the civil courts as the Syariah Court is not vested with jurisdiction to interpret the provisions of the Federal Constitution on the separation of legislative powers between the state and the federation. Rosli also explained the unconstitutionality of s.13 of the Syariah Criminal Offences Act which purports to legislate on printing, presses and publication which is the express and exclusive purview of the Federal List of the Federal Constitution.

 Wow! It seems Nik Raina’s case will go down in the law journals for these deep legal issues. And all that was triggered because of JAWI’s haste in raiding and seizing the book and charging Nik Raina before the Home Ministry banned the book.

Thus, I was pleasantly surprised to note when Syariah Judge Abdul Walid Abu Hassan nodded with understanding and approval to Rosli’s explanation. The Syariah Judge even remarked that he agreed that issues on constitutionality should be decided by the civil High Court and the Federal Court and the Judicial Review ought to be allowed to be disposed first before the Syariah criminal trial can proceed.

Syariah Judge Abdul Walid did not seem the least bid upset when Rosli explained that the Stay Order is against JAWI and not the Syariah Court. He even remarked that if the Judicial Review is not disposed by the next mention date, he may postpone the Syariah criminal case further.

Syariah Judge Abdul Walid was Open Minded and Fair

What a breath of fresh air! Here was a Syariah Judge who could appreciate the legal entanglement that JAWI had created in causing a conflict between the civil courts and syariah court by their hasty action. I was encouraged by such open mindedness on the part of the Syariah Judge. This, I thought, is promising and would enhance the image of the Syariah Court. For the first time, I learned to draw a distinction between the Syariah Court and the JAWI Syariah Chief Prosecutor.

While the Syariah Court showed some semblance of reasonableness and independence, I can’t say the same about the Syariah Chief Prosecutor, Ibrahim Deris. This man behaves exactly like his civil counterpart, the Attorney-General Gani Patail who is also the Public Prosecutor of Malaysia.

A-G Gani Patail’s Hidden Hand in the Prosecution of Nik Raina

That is why the A-G Chambers opposed Borders’ Leave, Stay and Judicial Review applications all the way.

The A-G Chambers acts in fait accompli to all the wrongful conducts of the Syariah Chief Prosecutor.

Instead of correcting the Syariah Chief Prosecutor and preventing him from charging Nik Raina before the book was banned, A-G Gani Patail encouraged that wrongful action by defending it in the civil High Courts and the Court of Appeal.

I won’t be surprised if A-G Gani Patail will also encourage the Syariah Chief Prosecutor to appeal against Nik Raina all the way if she gets acquitted. After all that was what A-G Gani Patail did to Rosli Dahlan. Gani Patail appealed against Rosli’s acquittal and let the criminal case hang over Rosli’s head for five years before withdrawing the appeal on the very day it was fixed for hearing last week. How more perverse can that be?

Deja Vu’

So, it is an irony of life that Rosli Dahlan, who was himself a victim of persecution, is now defending Nik Raina in this syariah criminal case. So, you have two perverse men helming the Syariah Prosecution and the Malaysian Public Prosecution.

It is men like the A-G and the Syariah Chief Prosecutor who give the criminal justice system a bad name. They prosecute the innocent for the wrong reasons. They abuse their powers and practise the Rule by Law rather than the Rule of Law. Some will say Deja Vu’!